Citation NR: 9702504
Decision Date: 01/28/97 Archive Date: 02/07/97
DOCKET NO. 94-01 193 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Muskogee,
Oklahoma
THE ISSUE
Entitlement to waiver of recovery of an overpayment of 38
U.S.C.A. Chapter 30 educational assistance in the amount of
$447.53, to include the question of whether the overpayment
was properly created.
REPRESENTATION
Appellant represented by: California Department of
Veterans Affairs
ATTORNEY FOR THE BOARD
John R. Pagano, Counsel
INTRODUCTION
The veteran had active military service from July 1985 to
March 1989.
This matter arises from a decision rendered in July 1993 by
the Department of Veterans Affairs (VA) Committee on Waivers
and Compromises (COWC) at the Muskogee, Oklahoma, Regional
Office (RO). Therein, it was held that the overpayment at
issue was properly created, and that it would not be against
the principles of equity and good conscience to require the
debt's recovery. Following compliance with the procedural
requirements set forth in 38 U.S.C.A. § 7105 (West 1991), the
case was forwarded to the Board of Veterans' Appeals (Board)
in January 1994 for appellate consideration. Following
preliminary review, the Board remanded the case to the RO in
December 1995 for additional development. While the case was
pending at the RO, the veteran revoked the power of attorney
that he had previously granted to the American Legion in
favor of the California Department of Veterans Affairs.
Because the case had not been recertified for appeal, such a
request for a change in representation did not violate the
provisions of 38 C.F.R. § 20.1304 (1995). The case then was
returned to the Board for final appellate disposition.
CONTENTIONS OF APPELLANT ON APPEAL
The appellant contends that VA erred in denying him the
benefit sought on appeal. More specifically, he contends
that the overpayment of educational assistance under
38 U.S.C.A. Chapter 30 for the period beginning September 8,
1992, and ending October 31, 1992, was improperly created
because he attended school during that period, and was forced
to withdraw because of a change in his employment.
Alternatively, he argues that it would be against equity and
good conscience to require repayment of the indebtedness at
issue.
DECISION OF THE BOARD
The Board, in accordance with the provisions of 38 U.S.C.A.
§ 7104 (West 1991 & Supp. 1996), has reviewed and considered
all of the evidence and material of record in the veteran's
education file. Based upon its review of the relevant
evidence in this matter, and for the following reasons and
bases, it is the decision of the Board that the overpayment
at issue was improperly created.
FINDINGS OF FACT
1. The veteran attended Cerro Coso Community College in
Ridgecrest, California from September 8, 1992, to October 31,
1992, at the 3/4-time rate.
2. On November 1, 1992, the veteran withdrew from six credit
hours at Cerro Coso Community College in conjunction with
employment that he accepted as a correctional officer with
the California State Prison System in Los Angeles County
beginning on November 11, 1992.
3. The veteran's withdrawal from classes at Cerro Coso
Community College during the fall 1992 semester was mitigated
by circumstances beyond his control.
4. The veteran was entitled to be paid educational
assistance under 38 U.S.C.A. Chapter 30 at the 3/4-time rate
for the period beginning September 8, 1992, and ending
October 31, 1992.
CONCLUSION OF LAW
The overpayment of 38 U.S.C.A. Chapter 30 educational
assistance in the amount of $447.53 was improperly created.
38 U.S.C.A. §§ 3680, 5107 (West 1991); 38 C.F.R. §§ 21.7136,
21.7139 (1995).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
The threshold question presented is whether the overpayment
at issue was properly created. See Schaper v. Derwinski,
1 Vet.App. 430, 434 (1991). In the instant case, the veteran
was paid for school attendance at Cerro Coso Community
College at the 3/4-time rate beginning September 8, 1992, and
ending October 31, 1992. The school later certified that
"[d]ue to a computer error with the ticket numbers of the
course," the veteran had been improperly certified for
11 credit hours for the period beginning September 8, 1992,
when, in fact, he had only pursued five credit hours. This
certification was signed by the school in January 1993.
Conversely, the veteran has steadfastly contended that he
did, in fact, pursue 11 credit hours until October 31, 1992,
but that he had to terminate six credit hours at that time
because of a change in his employment beginning in early
November 1992. The change in the veteran's employment has
been verified by the Department of Corrections for the State
of California. Moreover, a review of the veteran's education
file indicates that he unerringly had completed courses for
which he had enrolled from August 1988 until the period in
question.
The issue confronting the Board is one of fact. On the one
hand, the veteran's previous training establishment has
indicated that he did not pursue 3/4-time training for the
period in question; at the same time, that educational
establishment has admitted to discrepancies in its record
keeping during the fall 1992 semester. This is in contrast
to the veteran's unblemished history of educational training
beginning in August 1988, his steadfast insistence that he
attended school from September 8, 1992, until October 31,
1992, at the 3/4-time rate, and supporting documentation of
an unexpected change in his employment. Under the
circumstances, the Board believes that, at the least, the
evidence is in relative equipoise; therefore, all reasonable
doubt must be resolved in the veteran's favor. See
38 U.S.C.A. § 5107(b). Accordingly, the Board finds that the
veteran attended Cerro Coso Community College from
September 8, 1992, to October 31, 1992, and that, but for the
unexpected change in his employment, his school attendance
during the fall 1992 semester would have continued. These
circumstances mitigate against the creation of an overpayment
retroactively for the period of his school attendance from
September 8, 1992, to October 31, 1992. As such, the
overpayment at issue was improperly created. See 38 C.F.R.
§ 21.7139.
In view of the foregoing, the question of the veteran's
entitlement to waiver of recovery of the overpayment at issue
is rendered moot.
ORDER
Because the overpayment of educational assistance pursuant to
38 U.S.C.A. Chapter 30 in the amount of $447.53 was
improperly created, the appeal is granted.
DEREK R. BROWN
Member, Board of Veterans' Appeals
The Board of Veterans' Appeals Administrative Procedures
Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, 741
(1994), permits a proceeding instituted before the Board to
be assigned to an individual member of the Board for a
determination. This proceeding has been assigned to an
individual member of the Board.
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West
1991 & Supp. 1996), a decision of the Board of Veterans'
Appeals granting less than the complete benefit, or benefits,
sought on appeal is appealable to the United States Court of
Veterans Appeals within 120 days from the date of mailing of
notice of the decision, provided that a Notice of
Disagreement concerning an issue which was before the Board
was filed with the agency of original jurisdiction on or
after November 18, 1988. Veterans' Judicial Review Act,
Pub. L. No. 100-687, § 402, 102 Stat. 4105, 4122 (1988). The
date which appears on the face of this decision constitutes
the date of mailing and the copy of this decision which you
have received is your notice of the action taken on your
appeal by the Board of Veterans' Appeals.
The Board notes that the California Department of Corrections has submitted evidence stating that the
veteran’s Correctional Officer Academy Class received “short” notice prior to the onset of the class itself.
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